Perhaps the first same-sex divorce was filed in Bexar County, Texas in February by two females amid a challenge in federal court to Texas’ ban on gay marriage. Until the U.S. Appeals Court for the Fifth Circuit rules on the issue later this year, marriage and divorce between two same-sex individuals remains illegal in the state.
Allison Leona Flood Lesh and Kristi Lyn Lesh were married in Washington state on August 13, 2010 according to the San Antonio Express-News. They now have a 13-month-old baby girl and live in Texas. The couple filed for divorce on February 18, just eight days before the federal district court handed down its ruling to end the marriage ban, as reported by Breitbart Texas.
A dispute is likely regarding the custody of the child, according to local media. Flood wants to share custody of the couples’ child who was born in San Antonio. Lesh, however, wants full custody and claims that Flood has no parental rights because she is not the child’s biological mother.
Judith K. Wemmert, Flood’s lawyer, insisted to local press, “Because they are married and this is a child of the marriage, then we have the legal ability to ask for custody, visitation, so on and so forth.” Flood’s decision to not adopt the child may continue to question custody and visitation rights of the 13-month-old.
Neel Lane, an attorney who represented gay Texas couples, argued that Lesh and Flood’s custody situation exemplifies the need to legalize marriage, according to local press. Gay couples are “deprived of the benefits of an orderly dissolution of a marriage,” Lane said. “Second, their children are denied the benefit of the many laws to protect their interests in the event of a divorce.”
When asked for comment, Texas Attorney General Greg Abbott’s office has referred the public to a recent Texas Supreme Court brief involving a question of jurisdiction for Texas courts when petitioned for divorce by gay couples holding out-of-state marriage licenses. The brief states plainly, “Marriage in Texas can only be between a man and a woman, and courts may not give effect to any legal claim asserted as a result of an out-of-state same-sex marriage.”
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